“Our Courts, Our Fight” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects . Supreme and appellate court cases in the series can be found by issue and by judge at this link.

 

In a 5-4 ruling by Trump justice Neil Gorsuch, joined by Trump justices Brett Kavanaugh and Amy Coney Barrett, as well as Justices Samuel Alito and Clarence Thomas, the Supreme Court kept in place the Texas law that bans abortion care after six weeks and severely limited who can be sued in federal court to try to stop the prohibition, effectively ensuring that abortion opponents can continue to file “bounty hunter” lawsuits that will keep abortion care clinics closed throughout the state. The December 2021 decision was in Whole Women’s Health v Jackson. The Court also effectively kept in place a Fifth Circuit ruling that halted an injunction obtained by the Department of Justice against the law in United States v Texas.

As explained earlier in this blog, Texas passed one of the most restrictive abortion care laws in the nation, banning abortions completely after six weeks of pregnancy, when up to 90% of abortions take place. To avoid efforts in federal court to stop the law, Texas provided that state officials would not be responsible for enforcing the law, so that they could not be sued. Instead, the primary means of enforcement is a “bounty hunter” provision, under which any private individual can sue anyone who helps someone obtain abortion care, ranging from a doctor who performs one to a cab driver who brings someone to a clinic. The person filing the suit receives $10,000 for every proven violation, plus fees and costs. Once the law took effect, almost all clinics throughout the state shut down, and abortion care has effectively been unavailable in Texas.

Providers tried to stop the law before it took effect, and a federal district court was prepared to hold a hearing on a preliminary injunction against the law. But in a peremptory decision including two Trump judges on the Fifth Circuit, the hearing was cancelled and no other action against the law was allowed. The providers went to the Supreme Court, but in a 5-4 “shadow docket” ruling in which the Trump justices cast deciding votes, the Court took no action.

After significant criticism from conservatives as well as progressives, the Court agreed to consider the case again, including the question of who if anyone could be sued by the providers in federal court to try to stop the law. The Court also agreed to review yet another Fifth Circuit decision, which stopped a preliminary injunction against the law obtained by the federal Justice Department in a separate lawsuit, and heard oral argument on both cases at the beginning of November.

Six weeks later, the Court issued a number of opinions that resolved the cases, effectively giving Texas what it wanted. In an opinion joined by four other members of the Court, Trump justice Gorsuch ruled that the only parties that providers could sue to try to stop the law were state officials who would revoke or suspend licenses of clinics that violate the restrictive Texas law. Other defendants, notably Texas Attorney General Ken Paxton and the state court clerks who accept for filing the “bounty hunter” suits under the law, had to be dismissed from the case according to Gorsuch, because of “sovereign immunity” of state officials. Gorsuch maintained that the recognized Court decision in Ex Parte Young that allows lawsuits against state officials for injunctive relief does not apply to state courts or their “machinery.”  Gorsuch also argued that state court lawsuits could be filed to try to stop the law, including one already pending in which the state court recognized that the law violated the federal constitution, and claimed that the Court had shown “extraordinary solicitude” to the providers’ contentions, even though the majority again refused to suspend the law as the case goes forward. All members of the Court agreed that the state licensing officials could be sued, except for Justice Clarence Thomas, who claimed that no state official could be brought to federal court.

Chief Justice Roberts wrote a strong partial dissent, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. He explained that the Texas law was “contrary” to the Court’s currently governing decisions in Roe v Wade and Casey, and has clearly had the effect of “denying” the exercise of reproductive rights that “we have held” are “protected” by the Constitution.  At the same time, Roberts continued, Texas has used an “array of stratagems” to “shield its unconstitutional law” from federal judicial review and “chill the provision of abortions in Texas.” To try to counter that result, Roberts explained, it was proper under Young to allow lawsuits against the state Attorney General and state court clerks who are “unavoidably enlisted in the scheme” to enforce the law. Authorizing such federal suits, Roberts concluded, is crucial in order to combat Texas’ improper scheme to “nullify this Court’s rulings” on reproductive freedom. If state legislatures can effectively “annul the judgments” of the Court and “destroy the rights acquired under those judgments” as Texas has done here, he elaborated, then “the constitution itself becomes a solemn mockery.”

Justice Sotomayor was even more critical in a partial dissent joined by Justices Breyer and Kagan. She wrote that since  Texas’ law took effect three months ago, it has “substantially suspended” the right to choose abortion care in ”open defiance” of the Court’s precedents. The Court “should have put an end to this madness months ago” by enjoining the law until lower courts could fully consider challenges to it, she explained. Now, she went on, the Court not only refused to do that, but also made a “dangerous departure” from past precedents that establish that officials like the state Attorney General and state court clerks can be sued in federal court in order to stop the state’s action that “chills the exercise of a constitutional right” and seeks to “evade judicial review.” Texas’ “brazen challenge” to the Court’s precedents, Sotomayor went on, “echoes” the views of John Calhoun, a “virulent defender of the slaveholding South,” who argued that states had the right to “veto” or “nullif[y]”  any federal law or decision they disagreed with. Gorsuch’s ruling in this case, Sotomayor wrote, “clears the way” for other states to perfect Texas’ scheme and “target the exercise of any right recognized by this Court with which they disagree.” As a result, she elaborated, the majority “betrays not only the citizens of Texas, but also our constitutional system of government.” Sotomayor also dissented from the ruling in US v Texas that summarily dismissed its earlier decision to review the Fifth Circuit stay of the positive lower court ruling  on the Justice Department challenge to the Texas law, explaining that the Justice Department’s motion to vacate that stay should have been granted.

The full effects of Gorsuch’s decision and the Court’s actions are extraordinarily harmful.  Although the Court allowed some federal lawsuits against the Texas law to go forward, the scope of that relief is limited to allowing only  federal challenges against state licensing officials. Because of the majority’s limits on who can be sued, a statewide injunction by a federal court against the law is effectively “impossible.” And the prospects for other states following Texas’ model on reproductive and other constitutional rights, and of the Court itself overturning Roe in its decision later this term in the Mississippi case, remain  extremely discouraging. The decision made possible by Trump justices Gorsuch, Barrett and Kavanaugh illustrates all too clearly how effectively the far right has transformed the Supreme Court and why our continued fight for our courts is so important.